David Appuhamy Et Al V. The King

[COURT OF CRIMINAL APPEAL]

1952 Present: Nagalingam S.P.J., Gratiaen J. and de Silva J.

DAVID APPUHAMY et al, appellants, and THE KING,
Respondent

Appeals 80-81 with Applications 120-121

S. C. 29-M. C. Deniyaya, C 397

Penal Code, s. 294, Exception 1-Meaning of grave provocation-Test of gravity- Test of loss of self-control.

In regard to the mitigatory plea of grave and sudden provocation under Exception 1 to Section 294 of the Penal Code-

Held (by the majority of the Court), (i) that the test to be applied to determine whether a particular provocation is grave or not is to determine the extent to which passions are roused, and if intense passion or deep resentment is the result of the given provocation, it would then be grave.

(ii) that whether, in the opinion of the Jury, the provocation is grave or not should be considered in relation to the ordinary man of the class to which the accused belongs and not in relation to the particular accused.

(iii) that in regard to the question whether or not the accused was deprived of the power of self-control the peculiar susceptibilities of the particular accused must be taken into account.

APPEALS, with applications for leave to appeal, against two convictions in a trial before the Supreme Court.

K. Sivasubramaniam, with Austin Jayasuriya, for the accused appellants.

T. S. Fernando, Crown Counsel, with R. A. Kannangara, Crown Counsel, for the Crown.

Cur. adv. vult.

February 1, 1952. NAGALINGAM S.P.J.-

What is the proper direction to be given to a Jury in regard to a defence of grave and sudden provocation that is set up in answer to a charge of murder is the topic that has been debated on these appeals. This judgment is the view of the majority of us and when the plural " we " is used in expressing any opinion it would be used in the sense that it refers to the majority of us.

The appellants, father and son, have by the unanimous verdict of the Jury been found guilty of having committed the murder of one Hendrick Appuhamy alias Kalumahathmaya. Inter alia a mitigatory plea under exception 1 to section 294 of the Penal Code was raised on behalf of the prisoners. There was ample evidence of provocation to

which the learned trial Judge drew the attention of the Jury in the course of his charge, and it will be sufficient for our purposes to refer to the following :

" Well, gentlemen, I hardly think that there can be any doubt- it is a question of fact-that the deceased offered provocation to each of the accused, that when the 1st accused saw his father being treated in this fashion, his father being addressed as ' this fellow ', and being accused of going about armed with a pistol, that coming on top of everything that preceded, the 1st accused may well have been provoked, and by all what the deceased said the 2nd accused too may well have been provoked . . . one question that you will have to ask yourselves, if you are satisfied-I have no doubt that you are satisfied-that there was provocation, is : Was it grave ? "

Having thus made it clear that there was provocation given to both the prisoners, the learned trial Judge proceeded to explain to the Jury the expression " grave provocation ". The explanation is contained in the following passages :-

" What is meant by grave provocation ? Grave provocation is not something that causes this first accused to lose his self-control. One man may be more sensitive than another, but the law does not take into account the hypersensitiveness of 'a particular individual. Some men may be extremely sensitive, others may be more philosophic, but provocation is grave if it could cause a reasonable man to lose his self-control. The question of the test of the gravity of provocation was recently debated at length and considered by a Bench of Five Judges and a decision was recently delivered. I do not think anything I am saying now conflicts with that decision

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